Define Tort and explain its essential elements. Distinguish Tort from breach of contract and Crime.
Ans. The term “Tort” has been derived from the Latin term “Tortum” which means to twist.It means twisted, crooked, unlawful, or a wrongful act rather than an act which is straight or lawful. Tort may be defined as a “Civil Wrong” which is repressible by an action for unliquidated damages and which is other than a mere breach of contract or breach of trust” Tort is a civil wrong as opposed to a criminal wrong.
The various eminent jurist defined the term tort in a different manner – 1. According to Ratan Lal – “ A tort is a Civil wrong independent of Contract, for which the appropriate remedy is an action for damages.”
2. According to Dr. Winfield‟ = “ Tortious Liability arises from the breach of a duty primarily fixed by the law : this duty is towards persons generally and its breach is redressible by an action for unliquidated damages.
3. According to FRASER – “It is an infringement of a right in rem of a private individual giving a right of compensation at the suit of the injured party.
4. According to Salmond – “ It is a civil wrong for which the remedy is a common law action for unliquidated damages and which is not exclusively the breach of a contract or the breach of a trust or other merely equitable obligation.
Essentials of a Tort
On the analysis of the above definitions we find some common elements which are necessary to constitute a tort.
1. Act Or Omission :- In order to make a person liable he must have either done some positive act or made an omission in the performance of his legal duty, for example entering on the land of another without justification, or publishing a defamatory statement are examples of positive acts resulting in the torts of trespass and defamation. Omission to perform a duty, e.g., omission to cover a trench may make a person liable if somebody falls into it and gets injured. 2. Legal damage :- To be successful in action for tort, the plaintiff has also to prove legal damage. Unless there is violation of a legal right, an action under the law of torts cannot lie. 1
Notes on Law of Torts…
When there is Violation of a legal right it is actionable even without the proof of any damage (injuria Sine Damno). But when there is no violation of a legal right, no action lies even though damage may have been caused to the plaintiff (damnum Sine injuria) INJURIA SINE DAMNO :- It means Violation of a legal right without causing any damage. Since there is Violation of a legal right, it can be actionable in a court of law even though no damage has been caused, there are certain wrongs like trespass, which are actionable per se, i.e. actionable without the proof of any damage.
In ASHBY V.WHITE (1703)
the defendant, a
returning officer in a Parliamentary election, wrongfully refused to take the vote of the plaintiff the plaintiff did not suffer any loss by this refusal because the candidate for whom he wanted to vote won in spite of that. The defendant was, however, held liable, because the plantiff‟s legal right had been violated.
DAMNUM SINE INJURIA :- It means causing of damage without the infringement of a legal right. Unless there is infringement of a legal right mere causing of damage is not actionable. Therefore, no action lies when there is “damnum Sine Injuria”. Thus, setting up a rival school by the defendant was not actionable even though plaintiffs suffered loss because of competition (GLOUCESTER GRAMMAR SCHOOL, 1410), Similarly, when a number of steamship companies combined to oust the plaintiff from business, the defendants were held not liable. TOWN AREA COMMITTEE V. PRABHU DAYAL :- The Allahabad High Court has held that the demolition of the buildings illegally constructed by the plaintiff did not result in any “injuria” and, therefore the defendants, i.e. the Municipal authorities could not be mad liable for the same. 3 Legal Remedy :- A tort is a civil...
Please join StudyMode to read the full document